appearance of a food item or a dish. A three-dimensional trademark refers to the shape of the product or to its packaging in three dimensions (length, width and height). The notion of three-dimensional trademark ought to be strict, that is, refer only to shape and not include any other elements (e.g., nominative, graphic or colours). The distinctiveness requirement should only be related to the shape itself. The CJ seems to be in line with this opinion.90 Nevertheless, the EUIPO, since the UE Trademark Regulation of 2017, accepts the so called “enlarged three-dimensional trademark”, that is, a threedimensional trademark that besides the shape also includes other elements, namely nominative, graphic or labels.91 Anyway, we must not forget that in the EU (and in Portugal) threedimensional registration of trademarks is strict.92 It must not comprise the shape or other characteristic imposed by the nature of the product; the shape or other characteristic necessary to obtain a technical result; the shape or other characteristic that grant substantial value to the product [in this sense TM Directive 2015, Article 7 nº1, (e) and Article 209, nº1, (b) of the Portuguese CPI].The goal is to avoid distortion of free competence in the market. Threedimensional trademarks cannot acquire secondary meaning (see Article 231, nº2 CPI). Classical examples of trademark registration for shapes are the Coca-Cola bottle and the Toblerone package. Though trade dress has a large tradition in the US, applying also to the general appearance of the restaurant, in Portugal traditionally trade dress applies to the overall appearance of labels, wrapping or containers in which a producer packaged its product (see Article 233 CPI). Trade dress may include features such as size, shape, colour, textures, graphics, or even the design of the product. Trade dress has the same functions as trademarks, and it must be new, have a distinctive character and be non-functional to deserve protection. Trade dress, by its intrinsic nature, serves to identify a particular source. That makes it different from design protection. Portuguese CPI protects trade dress in a disastrous way. If the trade dress is 90 This is the opinion of GONÇALVES, L. M. COUTO, Manual de Direito Industrial, cit., p. 210. See also the famous Louboutin Case, CJ Ruling C-163/16, of 12 June 2018. 91 Mentioned by GONÇALVES, L. M. COUTO, Manual de Direito Industrial, cit., p. 211, foonote 487. 92 With detail, see GONÇALVES, L. M. COUTO, Manual de Direito Industrial, cit., pp. 207-215. Registry of the smell, taste or texture of food as trademark is even more problematic. Thought possible under EUTM Regulation and Portuguese CPI (Articles 208 and ff.), that abolished the necessity of graphic representation, still the strict interpretation of the CJ Sieckmann Case tends to prevail. The clear and precise representation requirement is always denied in these cases. With more detail see ROCHA, “The Mondrian Cake…”, cit., pp. 174-175. 254 MARIA VICTÓRIA ROCHA
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